This paper is submitted in
satisfaction of the Winter 2005 Food and Drug Law course
requirement and the third year written work requirement.

ABSTRACT

This paper examines the child obesity epidemic that
is gripping our nation, and explores various causes and treatments
that may help to defeat child obesity. First there is a description
of the obesity epidemic, its causal factors, and its consequences.
Additionally there is a summary and critique of the FDA’s
obesity report and recommendations. There is a description of drug
treatments that are available for obese children and why more
research is necessary to ensure the safety of drug treatments. The
paper then explores various causal factors of the obesity epidemic
and possible solutions. The paper stresses the need for parental
education and awareness, and the role that schools can play,
particularly regarding school lunches. This paper further explores
fast food litigation, as well as the possibility that regulations
on advertising and food labels can help combat the epidemic.
Finally, this paper explores the way market incentives can be used
to encourage corporations to take responsible actions to combat
child obesity.

THE OBESITY
EPIDEMIC

America is the fattest nation in the
world.[1] Recognizing the severity of the problem, the
National Institute of Health has labeled obesity a disease; in
fact, it is an epidemic.[2] Obesity ranks second only to tobacco use as the
largest contributor to mortality rates in the Unites
States,[3] and it is poised to overtake tobacco as the leading
cause of preventable deaths.[4] Specifically, over 100 million Americans, or over
60% of the adult population, are overweight.[5] Twenty percent of the population is classified as
obese, or more than 20% above their ideal body weight, and the
epidemic is growing at alarming rates.[6]

Explanations for the increase in obesity include
larger portion sizes, more snacking, and decreased smoking. People
eat more when they are offered larger portions.[7] People are snacking more; a recent study showed that
the increase in calorie intake between 1977-78 and 1994-96 can be
mostly explained by the increase in snacking.[8] Some point to social changes such as women entering
the workforce, or that Americans eat outside of the home now more
than ever.

Obesity is more than just being fat, it is a
disease and carries with it health complications and risks. Obesity
dramatically increases chances of contracting type 2 diabetes,
heart disease, cancer, kidney disease, and other life-threatening
conditions.[9]

Obesity rates are increasing fastest among
children.[10] Government and private studies have consistently
reached the conclusion that obesity among American children is
escalating, while consumption of Recommended Daily Allowances of
critical foods and nutrients is on the decline.[11] The percentage of overweight children ages 6 to 11
has tripled since the mid-1970s, and it has doubled for
teenagers.[12] Sixteen percent of U.S. children, more than nine
million kids, are seriously overweight.[13] Almost one-third of American kids are considered
overweight, and nearly one in six is obese.[14] This is especially frightening because obesity in
children means they will carry the risks of obesity-related
diseases throughout their lives. The Surgeon General reports that
obese children have an increased risk of diabetes, high
cholesterol, and high blood pressure, diseases that traditionally
only occur in adults.[15]

America needs to take action to combat child
obesity. A real danger lies in becoming complacent. One of the most
unsettling things about obesity is how quickly and accommodatingly
Americans are settling into it. For instance, many young children
are too heavy for standard car-safety seats, so manufacturers are
starting to make heftier models to accommodate them.[16] Inadequate car seats for heavy children could put
them at increased risk for injury in an accident, so ensuring child
safety in vehicles by making car seats for heavy children is
important. It is just disturbing that there is a real and growing
market for products for overweight children. Some stores even offer
plus sizes for children. In some ways, we are adjusting to a fatter
nation, when we need to fight it.

Obesity can be treated in a variety of ways. The
safest and most economically efficient way is to make lifestyle
changes, and specifically, to reduce caloric intake and increase
energy expenditure.[17] Also, but more costly, some overweight and obese
persons can be treated with pharmaceuticals, although some may
experience serious side effects in addition to any weight-loss
results.[18] Finally, the most serious of cases can be treated
using gastrointestinal surgery, which decreases the size of the
stomach and thereby reduces caloric intake; however, it is
costly.[19]

Many Americans attribute their weight problem to a
lack of personal responsibility.[20] William Steigler, the George W. Bush
administration’s special assistant to the secretary for
International Affairs, recently said that personal responsibility
is the key to fighting the obesity epidemic worldwide.[21] Most people are not as concerned about the obesity
epidemic as they should be because they think that obese people
somehow brought it upon themselves. As a society we need realize
that we are dealing with a public health problem and recognize that
there are many real and substantial costs associated with the
obesity epidemic. We must also recognize that obesity is a disease
that has many causes, including social and environmental factors.
Most importantly, we need to recognize obesity as an epidemic and
save our children from it.

“No nation is any healthier than its
children.”

President Harry S. Truman, as he signed the
National School Lunch Act into law.

Why are children fat?

Children are increasingly prone to becoming
obese.[22] The percentage of kids who are overweight has
tripled since the 1970s.[23] One in five teenagers is obese.[24] Societal changes and recent trends have lead to
the increase in child obesity and overweight.

Genetics certainly factor into the problem, but
they are not everything, and they do not explain the recent
epidemic of overweight children. If both parents are obese, a child
has a 66% chance of becoming obese.[25] There are genetic factors involved, but they are
the starting point. There are environmental factors that can be
controlled to combat obesity. Family is the most significant
influence on a child’s life. Eating and exercise patterns are
established in childhood.[26] While there is not much a parent can do about
passing on genetic traits, there are environmental factors that are
controllable.

Our nation’s dependence on the automobile
contributes to the recent surges in obesity. Children now get rides
everywhere. According to the CDC, today’s kids ride their
bikes or walk between school and home only about thirteen percent
of the time.[27] There are several justifiable reasons for this new
trend. For one thing, parents perceive streets as too busy for
their children to walk or ride bikes. Parents are also worried
about unsafe neighborhoods or dangers that could happen to a child
walking alone. In fact, evidence suggests that children from
economically disadvantaged environments are particularly vulnerable
to obesity.[28] On the other hand, suburban sprawl plays a role in
the epidemic as well; many times it is unfeasible for children to
walk to school because school is far away.[29]

Television is an especially troubling culprit. Not
only is watching TV a sedentary activity that provides children
with an opportunity to snack, but it subjects children to endless
advertisements for fast food, junk food, soda, and candy. The
average American child watches three to four-and-a-half hours of
television every day.[30] Researchers have found that overweight children
watched significantly more television than non-overweight children,
and that the risk of being overweight was directly related to the
number of hours of television per week that the children
watched.[31] A 1996 study by researchers at Harvard and the CDC
found that kids who watched more than five hours of TV each day
were more than four times more likely than other kids to be
overweight.[32]

Watching televisions provides an ideal opportunity
for children to snack without being fully aware of what they are
eating. Children snack more often than in the past, with snacks now
accounting for 18% of the average child’s energy intake, or
50% more than in 1994.[33]

Also, much of a child’s time is devoted to
sedentary activities, such as watching television. When they are
not watching a television program, children are often playing video
games, computer games, or surfing the internet. [34] This youngest generation may already be the most
sedentary in history. Children need at least an hour of moderately
vigorous physical activity daily, according to the National
Association for Sport and Physical Education (NASPE); however, half
of all U.S. children get less than thirty minutes of exercise a
day.[35] One study showed that 20% of all children perform
less than two hours of vigorous physical activity per
week.[36] Studies show that 50% of adolescents stop
exercising when they enter high school.[37]

Women entering the workforce, while wonderful for
gender equality, changed the family dynamic. According to the 2000
census, dual-income families with children are now the majority of
family units for the first time.[38] Socioeconomic changes within the family mean that
both parents are more likely to work and to work longer hours than
in the past, and diminish the percentage of parents who find time
to prepare meals for their families.[39]

Changes in the family dynamics affect the family
meal, which has a role in the obesity epidemic. Children who eat
with their families consume more fruits and vegetables and less
sweetened drinks, fried foods, and foods high in fat.[40] The biggest change in the American diet has been
the move away from the home-cooked meal.[41] On average, food eaten outside of the home, such
as in restaurants, contains more fat and fewer nutrients than food
cooked at home; Americans are eating out more than ever [42] More problematically, Americans tend to
underestimate the caloric content of restaurant food by
approximately 55%.[43]

Children’s diets are changing as well. The
majority of children’s diets are high in added
sugars.[44] Such a trend is alarming and likely offers an
explanation for escalating obesity rates, given that
children’s consumption of calories appears to come from added
sugars, rather than from non-saturated fats, grains, fruits, or
vegetables.[45]

Global Problem

While America is doing its part to lead as the
fattest nation, the rest of the world is growing fatter as well, as
evidenced by child obesity statistics worldwide. The International
Obesity Task Force reported that one in ten children worldwide is
overweight, for a total of 155 million children, with 30 million to
45 million of them classified as obese.[46] According to the IOTF, roughly 15% of
ten-year-olds in the United Kingdom and 30% of ten-year-olds in
Munich, Germany are overweight.[47] A recent study by Harvard researchers showed an
upsurge in child obesity in Beijing and other Chinese cities during
the last fifteen years.[48] One explanation for the increasing rates of
obesity across the world is a global trend of moving from farms,
villages, and small towns to big cities, and all the processed
foods they have to offer.[49] Whatever the causal factors are for the global
obesity problems, as child obesity spreads across the planet, the
personal responsibility and weakness explanation loses weight.

Consequences of the Epidemic

Parents and children do not understand the health
consequences of overweight children and child obesity. It can take
years before the harm caused by obesity begins to appear. Although,
alarmingly, some obese children have begun to suffer from health
conditions that have traditionally occurred only in
adults.[50] For example, risk factors for heart disease, such
as high cholesterol and high blood pressure, occur with increased
frequency in overweight children and adolescents compared to those
with a healthy weight.[51]

One of the more frightening health consequences of
child obesity is the prevalence of type 2 diabetes. This disorder
used to be called “adult-onset diabetes”, and was
brought on by age, inactivity, and excess weight.[52] Now, the frequency of type 2 diabetes in children
parallels the rise in child obesity and is one of the most
significant long-term consequences of childhood obesity.[53] In fact, type 2 diabetes for children accounts for
25% to 30% of all new cases of this diabetes.[54]

Type 2 diabetes can be triggered by an excess of
ten pounds.[55] The incidence of type 2 diabetes has risen by 33%
over the past ten years.[56] That Americans are contracting type 2 diabetes,
and similar obesity-related diseases, at earlier ages is
frightening and adversely affects their long-term health
outlook.[57] The incidence of juvenile diabetes has increased
tenfold over the past twenty years, and one in three U.S. children
born in 2000 will likely become diabetic in their
lifetime.[58]

All hope is not lost for obese and overweight
children. Even modest weight loss (5% of body weight) can reverse
insulin resistance if it is done before the pancreas burns
out.[59] However, once a child is at risk for type 2
diabetes, they are more susceptible to insulin resistance if their
weight increases again, which makes permanent changes in life style
and commitments to good health that much more important.[60]

The potential complications of type 2 diabetes are
severe and include increased risk of cardiovascular disease, heart
attack and stroke; damage to blood vessels and nerves; loss of
eyesight, fatty liver disease and kidney problems.[61] In fact, the American Diabetes Association reports
that 10% to 21% of all people with diabetes eventually develop
kidney disease.[62]

Overweight and obese children are vulnerable to a
variety of serious cardiovascular risks, including high blood
pressure, high cholesterol, coronary artery disease, and congestive
heart failure.[63] An estimated 50 million children have high levels
of cholesterol and run the risk of future heart disease and stroke;
early intervention is necessary to avoid the onset of
cardiovascular disease.[64] The research on high blood pressure in overweight
children is similarly distressing. In elementary school children,
studies have shown that 20% to 30% of obese five to
eleven-year-olds have an elevated systolic or diastolic blood
pressure.[65] There have been cases of elevated blood pressure
in obese children as young as two years of age.[66]

While there have been recent indications that some
of the side effects of high blood pressure are already causing
organ damage in obese children, the majority of research shows that
early intervention can prevent, and to a large extent reverse,
damage caused by obesity.[67] Improvements in diet and exercise that induce
weight loss are the keys to overcoming the cardiovascular risks
caused by obesity.

Psychological Consequences

The health consequences of the child obesity
epidemic are not completely known, and may not reveal themselves
completely for years down the road. On the other hand, the most
immediate consequence of being overweight, as perceived by children
themselves, is social discrimination.[68] Overweight children are not concerned about heart
disease, diabetes, or cancer; they are worried about being teased,
bullied, and fitting in.

One of the many potentially damaging consequences
of child obesity is low self esteem. A study found that 91% of
overweight children felt ashamed of being fat, 90% said peer
teasing would stop if they lost weight, and 69% thought that they
would have more friends if they were thinner.[69] Obesity is not taken seriously as a disease, even
by most adults. The pressure to be thin in this society is
enormous, and children perceive this even at very young
ages.[70] Childhood and adolescence is a very sensitive
time, and child obesity necessarily effects a child’s social
interaction and relationship development.[71]

The stigma of being overweight is as apparent in
childhood as in adulthood. Most people believe that fat people
could be thin if they had enough will power or self
control.[72] Overweight children and adolescents with decreased
levels of self-esteem reported increased rates of loneliness,
sadness, and nervousness, and were more likely to smoke and consume
alcohol.[73] The likelihood of a severely obese child or
adolescent having impaired, health-related quality of life was 5.5
times greater than a healthy child or adolescent, and similar to a
child diagnosed as having cancer.[74] In fact, a recent study found that overweight
kids have a worse quality of life than young cancer
patients.[75]

Future Effects

Sixty percent of the U.S. population is overweight
or obese and the population of obese children is growing.[76] The probability of childhood overweight persisting
into adulthood increases from approximately 20% at 4 years of age
to between 40% and 80% by adolescence.[77] This means that many children are growing up
carrying with them the health consequences of overweight and
obesity and increased risk of disease. More frightening is that
they will suffer from these diseases during what should be the
prime of their life. Some predict that many children diagnosed with
type 2 diabetes today will start to suffer the worst of its
complications in their twenties or thirties.[78] That means that they can anticipate kidney
failure, heart disease, blindness, and amputations at the point
when they are launching a career or starting a family.[79]

In addition to adverse health effects, the obesity
epidemic is costing Americans billions of dollars in health
care.[80] Estimates of the direct and indirect costs of
caring for overweight and obese people are approximately $157
billion per year.[81] As the epidemic spreads and obesity continues to
grow, so will these costs.

Because of this epidemic, this generation of
children may have shorter life expectancy than the current
generation of adults.[82] The U.S. life span has been steadily increasing,
but increasing child obesity rates may mean that life expectancy
will level off or get shorter in the coming years.[83] The increasing child obesity rates mean dramatic
increases in the risk of type 2 diabetes, heart disease, cancer,
kidney disease, and other life-threatening conditions.[84] A recent study found that a twenty-year-old who is
very overweight may expect to live thirteen fewer years than
someone the same age with a normal weight.[85]

In short, we have created a culture with a penchant
for fast, high-calorie food and super-sized portions, along with a
precipitous decline in exercise for a variety of reasons. The
Surgeon General states that “left unabated, overweight and
obesity may soon cause as much preventable disease and death as
cigarette smoking.”[86] More so than any other age groups, children are
prone to take risks, weigh short-term consequences more heavily
than long-term consequences, and uncritically ascribe to advice or
suggestion.[87] Children in particular need protection from this
culture.

The key to defeating child obesity is recognizing
and accepting that there is no one cause at which to point blame
just as there is not one magic solution that is going to fix the
problem. There are many ways of combating child obesity, and they
are all valuable and necessary.

THE FDA OBESITY WORKING GROUP REPORT

Government and public agencies recognize the
escalating problem of obesity in America and the urgent need to do
something about it. In 2003, the FDA created the Obesity Working
Group (OWG) to outline an action plan to cover critical dimensions
of the obesity problem from the FDA’s perspectives and
authorities.[88] The group created a plan of action based on a
“calories count” idea, that weight control is a
function of balancing intake of calories eaten and calories
expended on physical and metabolic activity.[89] Based on this idea, the group came up with
recommended actions the FDA can take to combat obesity.

In terms of food labeling, the OWG emphasized
giving calories more prominence on the food label by increasing the
font size, including a percent Daily Value (%DV) column for total
calories, and eliminating the listing for calories from
fat.[90] Serving sizes also tend to be confusing for
consumers; the group recommends encouraging manufacturers to label
as a single-serving food packages where the entire content of the
package can be reasonably consumed at a single-eating
occasion.[91] The report also looked at carbohydrates, and
recommended providing guidance for use of the term
“net” in relation to the carbohydrate content of
food.[92] Another recommendation was to encourage
manufacturers to use appropriate comparative labeling statements
that make it easier for consumers to make healthy substitutions,
including calories.[93]

The OWG recommended that the FDA, with the Federal
Trade Commission (FTC), increase enforcement against weight loss
products having false or misleading claims.[94] Also in terms of enforcement, the FDA should
consider enforcement action against products that declare
inaccurate serving sizes.[95]

The group recommended that the FDA establish
relationships with youth oriented organizations to educate
Americans about obesity and leading healthier lives through better
nutrition.[96] The FDA should also urge the restaurant industry
to launch a nation-wide, voluntary, and point-of-sale nutrition
campaign for consumers.[97]

Addressing the use of therapeutics, the OWG
recommended that a standing FDA advisory committee convene to
address challenges, as well as gaps in knowledge, about existing
drug therapies for the treatment of obesity.[98] They also recommended that the FDA revise 1996
draft guidance on developing obesity drugs.[99] The FDA should support and collaborate on
obesity-related research with others, including the NIH.[100] With the USDA and Agricultural Research
Service (ARH), the FDA should pursue research on obesity
prevention.[101]

These carefully considered steps are ways that the
FDA is attempting to combat the obesity problem; however, these
alone are not going to solve it. More aggressive steps from other
actors are necessary in successfully fighting this epidemic. The
focus on balancing calories is a positive way to grasp onto a
solution to the problem. Weight as a function of calories taken in
and calories expended is easy to understand and employ in weight
loss goals.

Recognizing that there are “gaps in
knowledge” regarding drug therapies and the need to fill them
is a positive step in combating obesity, especially when dealing
with child obesity. Drug therapies may prove to be a critical tool
in curbing the obesity epidemic, but there are many unknowns that
such courses of action implicate. The FDA’s role in approving
and monitoring any drug therapies to treat or combat obesity should
be carefully considered, which the group seems to acknowledge.

The FDA is under-resourced and cannot entirely
overcome the obesity epidemic on its own. The OWG’s
recommendations acknowledge the importance of working with other
agencies as well as the restaurant industry and youth relevant
organizations. The report focuses on what the FDA can control, and
clearly needs to improve upon, which is food labeling, especially
in terms of serving sizes and comparative labeling statements. In
keeping with the “calories count” theme, the group
stressed the importance of making calorie information more
prominent, more accurate, and more available to consumers through
labels. The educational partnerships area exemplifies where the
report is lacking. The group recognizes the importance of working
with youth-oriented groups to raise awareness and education, but
the report largely ignores the function and role of schools, both
in actuality and in potential.

DRUGS

Few, if any, guidelines exist for using medications
in treating child obesity.[102] The general consensus is that a child with a
Body Mass Index (BMI) greater than the 95th percentile
for age and sex with obesity-related medical complications that may
be corrected or improved through weight reduction should be
considered for intensive weight loss regimens, including
medications.[103] show.htm?doc_id=355783. There are many gaps
to what available drug therapies can do for obese children. For
example, the medical and pharmaceutical world has not created a
prescription drug that can treat obesity-associated dyslipidemia
(hypertension in children).[104]

The FDA has approved sibutramine (Meridia) for
weight loss and maintenance in conjunction with reduced calorie
intake for adolescents older than sixteen.[105] Sibutramine is an appetite suppressant and
works by affecting the area in the brain that controls hunger,
providing a sense of fullness and satisfaction.[106]
http://www.webmd.com/drugs/drug-5405-Sibutramine.aspx?drugid=5405&drugname=Sibutramine
In a trial using sibutramine to treat obese adolescents, including
sibutramine as part of a comprehensive behavioral program resulted
in greater weight loss in obese adolescents than traditional
behavioral treatment alone; however, the weight loss plateaued
after six months of therapy.[107] The most problematic aspect of using drugs
such as sibutramine to combat obesity in children is the side
effects. The trial revealed serious side effects such as
hypertension and tachycardia (rapid heart beat) in nineteen out of
forty-three adolescents.[108] In five, the drug dose had to be reduced or
discontinued.[109] Another study examined the efficacy and
safety of sibutramine in a six month, double-blind,
placebo-controlled trial in sixty obese adolescents. [110] This study did not show the same serious side
effects as the other study; it did not find clinically significant
changes in blood pressure.[111]

Orlistat, or Xenical, is a drug approved by the FDA
for use in children older than age twelve.[112] Orlistat decreases nutrient absorption and
cuts intestinal fat absorption by up to thirty percent.[113] A placebo-controlled study on orlistat in
obese adolescents found that those that used orlistat lost weight
and had significantly greater reductions in BMI and body fat than
those given the placebo, but the body weight loss was small (5
percent).[114]

The third type of drugs used in treating obesity is
not aimed at controlling weight but targets insulin resistance to
reduce the metabolic complications associated with
obesity.[115] Metformin, for example, is used in treating
type 2 diabetes and is approved for adolescents.[116] Two small studies have used metformin in a
randomized trial in obese adolescents; both found small but
statistically significant effects on BMI and significant effects on
fasting blood sugar, insulin, and lipids.[117]

The potential dangers of side effects of using
drugs like sibutramine on children are troubling. These studies
concluded that sibutramine should be used for weight loss in
adolescents only on an experimental basis until there is more
extensive knowledge of efficacy and safety.[118]

There is a genetic component to body weight, and
some children are genetically predisposed to struggle with
weight.[119] It is suggested that 5 percent of cases of
severe obesity in children younger than ten are due to genetic
mutations. In these cases, using drugs can likely contribute to an
effective approach to combating obesity and maintaining a healthy
weight.[120] The FDA should explore the possibility that
these adolescents could really benefit from drugs.

Gastric banding surgery involves wrapping a
silicone band around the upper part of the stomach to create a
pouch, narrowing the passage to the rest of the digestive
system.[121] Unlike gastric bypass surgery, gastric
banding does not permanently alter the stomach and can be
adjusted.[122] The FDA has only approved Lap-Band for
adults, but they are available off-label for younger patients,
meaning surgeons may opt to use the device in some teenagers and
adolescents based on the patient’s condition and their own
clinical experience.[123] The pool of candidates is growing.[124] Even if using weight-loss surgery to treat
obesity in children, there are still mental aspects that need to be
addressed and treated. There needs to be a commitment to changing
eating habits and regularly exercising. The emotional aspects of
eating are not going to go away magically even if the weight does.
Adolescence is already a tough phase of life, so it is especially
important that the emotional needs of overweight or obese children
are met.

AWARENESS

Parental awareness is essential to inducing action
and battling the child obesity epidemic. Most parents of overweight
children do not consider them to be overweight.[125] A study of obese African-American children
revealed the many parents neither perceived their children as very
overweight nor felt that weight was a health problem for their
child.[126] It is imperative to raise awareness of the
epidemic and stress the importance of taking action. Most of the
children referred to specialists had developed obesity in their
preschool years, when preventative measures are likely to be most
effective.[127]

Parents also underestimate the amount of calories
and poor nutritional content of foods they serve their children. An
obvious question regarding the link between fast food consumption
and poor health pertains to consumer awareness of the food’s
content, and whether the consumer knowingly chooses to consume
relatively unhealthy food.[128] For the most part, children are not going to
have complete awareness of the nutritional content of foods, so the
parents’ responsibility in knowing this information is
particularly important. Americans tend to underestimate the caloric
content of restaurant food by approximately 55%.[129]

Parents need to encourage and facilitate more
physical activity in their children. Children are less active then
previous generations. Parents tend to perceive this trend, as 33%
of parents find that their children exercise less than they did at
the same age.[130] Recognizing the lack of physical activity in
children is a positive first step, but it is fruitless without
parents committing to encourage physical activity, whether it is
setting rules or taking their children outside to play.

Pediatricians also need to take a more active role.
A 1997 Michigan State university study found that between 1997 and
2000 excessive weight was identified in less than one percent of
children visiting a doctor’s office or urgent care center,
while sixteen percent of the nation’s kids are
overweight.[131] The study also revealed that only seven
percent of obese kids actually receive a diagnosis of
obesity.[132] This seems like a gross act of oversight on
the part of pediatricians.

An explanation for doctors not playing a more
active role in fighting obesity is revealed in a 2002 study that
found that although surveyed doctors believed overweight children
and teens should be treated, they did not feel that they had the
skills to counsel kids effectively or to manage their treatment.
This logically leads to two conclusions – either give
pediatricians the skills they feel is necessary to be comfortable
effectively treating obese children or emphasize the importance of
diagnosing and referring obese or overweight children to those that
can effectively counsel them. Being overweight is an extremely
sensitive issue, especially when dealing with emotionally fragile
adolescents. Doctors should make an effort to at least diagnose and
address the problem, and if they are uncomfortable going further,
recommend further consultation with nutrionists and counselors that
can help with treatment. Additionally, in treating overweight
children, pediatricians, parents, and patients must realize that
the goal of treatment is not the initial weight loss alone, but
also weight management to achieve the best possible weight for
improved health.[133]

Parents are in the best position to make a
difference. The food preferences of adults are predominantly shaped
by their eating habits as children.[134] Parents have more control over a
child’s weight than anyone else in that child’s life,
including doctors, nutritionists, friends, and even the
child.[135] Parents are the ones that buy the groceries,
prepare the meals, and set the rules. A 1990 study in the
Journal of the American Medical Association put children and
their parents through three educational programs, but only one
involved both parents and children.[136] Ten years later the group that involved
parents and children dropped eight percent in proportion of
children overweight; the obesity rates climbed in the other two
groups.[137] Doctors used to focus on educating the child
about how to lose weight, but this study revealed that it is
actually more effective to educate parents as well.[138]

Another study conducted in 2004 reveals the power
parents have to influencing childhood weight loss.[139] This study involved sixty overweight
children.[140] Half of the children attended thirty classes
on diet and exercise; the other half stayed home while their
parents attended fourteen classes on encouraging children to eat
well and stay active.[141] After one year, both groups lost weight but
the children of the parents who attended class lost significantly
more weight.[142] Three years later the children that attended
class were more overweight than before, and the kids who stayed
home had lost even more weight.[143] These studies show that when parents are
committed to creating a healthy environment, children can lose
weight and keep it off.

LABELING

Congress passed the Nutrition Labeling and
Education Act of 1990 (NLEA) to clarify and strengthen the FDA
legal authority to require nutritional labeling on food.[144] The NLEA requires that food manufacturers
provide nutritional labels for most food items sold in retail food
stores.[145] The FDA issued labeling regulations regarding
when a food label could use “light,”
“low-calorie,” and “low-fat” to describe a
product. Also, the regulations require that food manufacturers
place the “Nutrition Facts” graphic on the labels of
all processed foods.

Restaurants and Labeling

Restaurants are largely exempt from NLEA, and are
fully absolved of the general nutritional labeling standards and
requirements.[146] The federal government has exempted all
restaurants from food labeling requirements.[147] No state government has yet to impose
labeling requirements.[148] Unless restaurants affirmatively champion
their food’s healthy nature, the NLEA does not impose a legal
obligation to reveal their dishes’ fat and caloric
content.[149]

In 1993, criticism of the NLEA’s lack of
regulation of restaurants, specifically the fast food industry,
escalated as a number of fast food companies added
“low-fat” or “healthy” dishes to menus
without demonstrating why those items were so healthy.[150] The FDA promulgated new regulations to
require that those purportedly “healthy” items meet
some, though not all, of the nutrition labeling requirements
imposed on food sold grocery stores.[151]

Despite this increased scrutiny of restaurants, the
FDA acknowledged that “unlike processed foods, menu items
bearing a claim are not held to the same strict standards of
laboratory analyses”.[152] Initially under the NLEA, health claims for
non-restaurant foods and dietary supplements required FDA
pre-market approval.[153] The Food and Drug Administration
Modernization Act of 1997 (FDAMA) removed the requirement of FDA
approval, but it still mandated that claims for non-restaurant food
be derived from “authoritative statements” of a
scientific body. Restaurants, however, could rely on a recipe from
any “recognizable health professional association” to
establish their healthy menu items.

Restaurants are also largely exempt from revealing
their foods’ nutritional information. As per the 1993
regulations, the FDA required only “reasonableness” on
the part of restaurants when informing customers of their
dishes’ content.[154] This does not require restaurants to make the
“Nutrition Facts” available as required on packaged
food labels.[155] The FDA has stated that restaurants should be
able to make their own determinations as to the explanation of an
item’s nutrition.[156] Under the current regulation scheme, if a
restaurant menu item does not advocate a promotion of good health,
the restaurant bears no obligation to divulge that item’s
nutritional content, even upon customer request.[157]

The absence of nutritional disclosure for
restaurant items may delude a more health-conscious person into
selecting the wrong item.[158] For example, a Burger King customer may
select a veggie burger off the menu rather than a hamburger under
the illusion that it is a healthier choice, absent the knowledge
that Burger King’s veggie burger actually contains four more
grams of fat than a hamburger.[159] Armed with this information, the customer can
make a rational decision about which is a healthier choice.

Why are the requirements of restaurants so
flexible? The restaurant industry points out that it is often
infeasible to provide nutritional information.[160] For one thing, menu items can often fluctuate
in size and caloric content depending on the availability of
ingredients and other factors.[161] Smaller, non-chain restaurants often vary
chefs, cooking styles, and have other inconsistencies that make it
difficult to assess the nutritional content of their food
dishes.

The restaurant industry, in its opposition to
divulging nutritional information, has effectively lobbied
Congress.[162] The industry also often argues that the costs
involved in menu modification, necessary if labeling requirements
are imposed, increase the cost of doing business.[163] These necessary changes would largely be sunk
costs of compliance, however, and menus are often modified for
business reasons. Also, menus are limited in size, so restaurants
argue that nutritional information would be difficult to display.
Alternatives to including all nutritional information on the menu
would be to post such information on tables or on cartons of
food.[164] If nutritional information is posted on
cartons of packaged foods, it is conceivable that the nutritional
information would not be available until after the point of sale,
so it would not aid in the decision-making process.[165] Even if this were the case, at least the
nutritional information would be available at some point, which
will aid in future decisions, and is better than not providing the
nutritional information at all.

A way that restaurants are making the nutritional
content of their foods available is through the internet. Some fast
food and chain restaurants now post nutritional information on
their websites.[166] While this does disseminate nutritional
information on a fairly wide basis, 42% of Americans remain without
internet access.[167] Those with modest amounts of income and
education are those most in need to nutritional information, and
the most likely to be without internet access.[168] Also, a criticism of these websites is that
while the nutritional content of food items is listed, they often
do not provide the daily nutritional percentage that such content
comprises, so there is no context provided with which to gauge the
nutritional quality of the food.[169]

The fast food industry is in a particular position
to fairly easily provide nutritional information, since its items
are standardized, and it prides itself on providing the same
product at all stores.[170] Therefore, the nutritional content of menu
items is less likely to fluctuate than in smaller, independent
restaurants. Keeping information, such as a list of ingredients,
unavailable is appealing because these companies want to protect
creations and prevent copies.[171] However, even Coca-Cola, with its infamous
secret formula, complies with NLEA’s labeling requirements
for packaged foods, so any such requirements on the restaurant
industry should not impose an undue burden.

Americans spend nearly fifty percent of their food
“dollar” eating outside the home.[172] So while NLEA requires nutritional content
labeling on grocery contents, in half of what Americans eat they
are unaware of the nutritional content. This is especially
problematic given that Americans regularly underestimate the amount
of calories in food they order in restaurants.[173]

Eating out, and not just at fast food restaurants,
adds to the nation’s obesity problem. Many restaurants offer
children’s menus. Children’s menus tend to offer foods
that appeal to kids, but have little nutritional value and lots of
calories. For example, the grilled cheese sandwich and fries on the
children’s menu at Applebee’s, a popular chain
restaurant, has 900 calories and more saturated and trans fat than
a child should eat in an entire day.[174] The other options on the Applebee’s
children’s menu are chicken fingers, cheeseburger, corn dog,
and macaroni and cheese, all with a side of fries.[175] While these are foods generally appealing to
small children, noticeably absent are fruits or vegetables.

One solution to the restaurant labeling dilemma is
facilitating voluntary agreements with restaurants to entice them
to make nutritional content available.[176] A benefit to this alternative to legislation
is that it entails negotiation and enables companies to directly
participate in the process. Also, as in voluntary agreements
between government and environmental polluters, FDA and government
administration and monitoring costs can be reduced because such
agreements are partly self-monitored by participating
companies.[177] The problem with this scheme is that these
agreements are by definition voluntary, and so there is not a
direct means for enforcement. Also, voluntary agreements must
involve widespread market participation to create a significant
benefit to consumers. However, encouraging and enabling these
voluntary agreements can lead to greater support for changes in
public policy. For example, New York pursued voluntary agreements
with fast food companies to reveal nutritional content of food
items.[178] After New York City created such an agreement
with Burger King to display nutritional posters, the Fast Food
Ingredient Disclosure Ordinance of 1991 was proposed, and if passed
would have been the first law in the country to mandate the
furnishing of nutritional information for fast food items.[179] Although it was not passed, it at least
raised awareness and discussion of the obesity problem, and
presented a possible solution through nutritional labeling of fast
food restaurant fare.

Portion Sizes and Serving Sizes

Increased portion sizes play a significant role in
the obesity epidemic, and food labels can address this area. A
portion size is the amount of food you choose to eat. Serving sizes
are a standard measurement that tells you how much you should eat
and identities how many calories and nutrients are in one serving a
particular food.[180] In the past few years, portion sizes have
increased while standard serving sizes on food labels have remained
unchanged.[181]

Portion sizes for foods such as salty snacks, soft
drinks, french fries, cheeseburgers, and Mexican food all increased
dramatically between 1977 and 1998, according to a USDA
survey.[182] Nowhere is portion inflation more apparent
than in restaurant servings, which use increased portion sizes as a
value marketing strategy.[183] Value marketing has also inflated the size of
sodas.[184] Many restaurants offer free refills of soda,
sneaking in more calories where a consumer may not contemplate.

Studies on portion sizes show that most people will
eat more when offered more, regardless of how full they feel during
the meal.[185] Current portion sizes are also recognized as
a problem for school-aged children who participate in the National
School Lunch Program.[186]

Perhaps the most controversial part of the
Nutrition Facts graphic is the serving size, which is supposed to
facilitate making nutritional comparisons of similar
products.[187] The NLEA defines serving size as “the
amount of food customarily eaten at one time”.[188] Serving sizes for various categories of food
products are determined by FDA regulation in what are called
“reference amounts”.[189] A reevaluation of existing reference amounts
to determine whether they continue to represent amounts customarily
consumed could aid consumers in controlling calorie intake. The
current reference amounts are based on data obtained through
1977-78 and 1987-88 Nationwide Food Consumption Surveys conducted
by the USDA.[190]

Recent empirical evidence indicates that the amount
of food Americans consume today has increased.[191] If portion sizes have dramatically increased
and standard serving sizes on nutritional labels have remained the
same, consumers may underestimate the amount of calories and other
nutrients that they eat. Since the FDA has decided to focus on
calories as a way to fight obesity, making adjustments to the
serving sizes to make them more accurate is a way to help consumers
make food choices.[192]

Regulations give manufacturers serving sizes for
particular products or food categories.[193] However, similar food products are sometimes
allotted disparate serving sizes, making nutritional comparisons
challenging.[194] Even identical products in different sizes
create problems of perception. A twelve-ounce bottle of Coca-Cola
has 140 calories and is considered a single serving, while a
twenty-ounce bottle of Coca-Cola contains 330 calories and lists
100 calories as a single serving.[195] These discrepancies make it harder for some
observers to understand differences in serving size between similar
or identical products, and may end up consuming more calories than
desired.

Current food labeling rules prohibit comparisons
across food groups.[196] Labeling is also restricted as to comparisons
based on reduced portion size; comparisons must be made between
standard serving sizes.[197] While this likely works to protect against
confusing or misleading comparisons made for advertising purposes,
comparing across food groups or serving size may actually benefit
consumers given the role of increasing portion sizes in the obesity
epidemic. The FDA and other government actors should consider
whether these food labeling regulation restrictions can be adjusted
to allow useful information to assist consumers in making better
choices about their diet and caloric intake.

Improving food labels will aid parents in making
food decisions for their children. Parents tend to markedly
underestimate the daily caloric intake of their children, most
often in the absence of nutritional labeling.[198] In making meal decisions, a typical parent
would likely be affected by mistaken assumptions about a
food’s nutritional content, because in that consumption
decision, the parent prioritizes nutrition ahead of both taste and
price, and internalizes a diminished toleration of risk.[199] Making nutritional information more available
and clear helps this process along.

The restaurant industry, particularly fast food
which has been the most publicly attacked for contributing to
America’s obesity problem, defend itself under the idea that
restaurants cannot be held responsible for the poor choices of its
customers.[200] If restaurants are going to stand behind and
advocate consumer choice, then they should be willing to offer up
as much relevant information as available to the consumer to make
those choices.

Since the FDA is advocating a “calories
count” theme to combating obesity, the FDA should consider
changes in the current food labeling regulations that would assist
consumers control calories. Current regulations impose a 25%
threshold for reduced-calorie claims, and prohibit such claims for
foods that are already low in calories.[201] The average consumer likely is unaware of
these rules. Relaxing these regulations additionally provide food
corporations and producers market incentives to reduce calories in
products even by small amounts. Small calorie reductions can be
nutritionally significant, as even modest daily changes have a
substantial impact on weight over several weeks or months.[202]

Overall, making these kinds of changes should not
hurt the consumer if done in a way that is not misleading. As food
companies create lower calorie, healthier options for consumers,
they should be able to communicate these improvements to the
consumer. At the same time, the FTC and FDA need to police the
marketplace to ensure that any nutritional information or claims
conveyed to consumers are accurate and not misleading. The policy
reasons for having restrictions on labels are to protect the
consumer from misleading or deceiving labels. As long as the FDA
and the FTC aggressively work to keep labels from misleading
consumers, more and accurate information should ultimately benefit
consumers and allow them to make informed and better decisions.

Whatever flaws are implicit in the current
nutritional labeling format, consumer choice is enhanced by
observation of nutritional content.[203] An imperfect format is better than no format
providing nutritional information. Taking action to improve upon
the current format and enhance its effectiveness will make it all
that much better, and increase consumers making rational choices
pertaining to nutrition and health.

THE ROLE OF SCHOOLS

It is ironic, and sad, when schools teach nutrition
and health in the classroom and offer unhealthy foods in the
cafeteria. The reality is that schools are failing at promoting
nutritional values and well-being when they are in an excellent
position to influence the health of children. Schools consistently
offer foods to students that are high in calories with little or no
nutritional value, and ignore the consequences on children’s
health. Expanding the number and variety of healthy food choices
increases the likelihood that students will select them. Students
are in school five days a week for at least one meal per day.
Schools have the opportunity, and the responsibility, to make an
enormous impact in the fight against child obesity.

The Study Center for Science in the Public Interest
surveyed 200 schools and found that 75% of the drinks and 85% of
the snacks offered to children have poor nutritional
value.[204] More than 76% percent of schools sell soft
drinks and sweetened fruit drinks, but fewer than half offer
bottled water.[205] Fewer than 15% of schools sell low-fat or
nonfat yogurt, and less than one-third order skim milk.[206] Only 25% of schools report reducing fats or
oils in recipes.[207]

School Lunches

When school lunchrooms or cafeterias do not provide
healthy and appealing food choices, that is a failure of a
community responsibility. Changing school nutritional policies
provides an easy way to attack the problem of child obesity. There
are many facets of the child obesity epidemic, but few
straightforward ways to attack it; policies regarding school
lunches offer one such way. If school lunches are contributing to
childhood overweight, making lunches healthier has the potential to
impact a large number of children across socioeconomic status,
race, and geography boundaries.[208] Also, the federal government spends over $6
billion per year on the National School Lunch Program, so it wields
a lot of power over what children eat school, if it chooses
to.[209]

The National School Lunch Program (NLSP) is run by
the USDA and supplies free or reduced-price lunches to more than 30
million students daily, 60% of the total population.[210] It is the number one provider of
away-from-home meals for younger children and adolescents. The
original idea was to provide food groups (meat, bread, vegetables,
fruits, and milk) with amounts sufficient to provide one-third of
the recommended daily allowance (RDA) of key nutrients.[211] The problem with the program is that while
these lunches meet these (minimal) nutrient requirements, they are
also high in fat and calories. Overall, 16% of all children do not
meet any of the nutrient requirements specified in the recommended
daily allowance.[212] Research on the NSLP found that participants
consume more vitamins and minerals at lunch than non-participants,
and those participants also consume more calories in a typical day
than non-participants, with the additional calories consumed at
lunch.[213]

A study conducted by Diane Whitmore Schanzenbach
followed kindergarteners that started school with the same risk of
obesity.[214] Factoring in confounding variables, Whitmore
concluded that children who eat a NSLP lunch for two school years
are about 2 percentage points more likely to be obese than children
that brought lunch from home.[215] The study found that on average, students
eating a school lunch consume an extra 40 calories per day, all at
lunch.[216] Holding all else constant, that increase
could account for the observed weight gain.[217] Another study using a nationally
representative survey collected by the USDA found that school lunch
participants consume an extra 120 calories per day than students
that bring lunch from home, after controlling for demographic
characteristics.[218] If first-graders consume an additional 40
calories a day, the rate of overweight increases by 1.7 percentage
points.[219] If the number of additional calories from
eating a school lunch is closer to 120, the difference in obesity
rates could be as high as 7 percentage points between kids that eat
school lunch or bring lunch from home.[220] These studies show that changes in school
lunches and making them healthier has the potential to make a real
impact in the child obesity problem.

In 1995, after research showed that many school
lunches failed to meet nutrition requirements, Congress passed the
“School Meals Initiative for Healthy
Children.”[221] This new policy required food served to meet
one-third of the child recommended daily allowance (RDA) of
calories, protein, calcium, iron, and vitamins A and C, and for no
more than 30% of calories to come from fat.[222] Also, schools were to restrict foods of
“minimum nutritional value”, such as soda.[223]

One problem is that many school districts struggle
financially, and soda companies offer contracts or fast food
companies come in and cut costs. Schools need to take a stand
against such contracts and look for innovative ways to raise money
without using soda or candy sales, or offering fast food for lunch.
A national study found that the number of exclusive marketing
contracts between corporations and schools increased thirteen-fold
in the 1990s.[224] Coca-Cola was the leader with 6,000 contracts
in the nation’s more than 14,000 public school
districts.[225]

A recent and troubling trend is for fast food
restaurants to sell their products in schools. Fast-food chains
such as Pizza Hut, Taco Bell, Subway, Chick-fil-A,
McDonald’s, and Arby’s sell their food products in
school cafeterias, and schools mark up the prices 50% to
100%.[226] This practice raises much needed money for
schools, especially ones facing budget cuts and constraints.
Nationally, nearly 20% of schools offer branded foods to their
students.[227] Although federal dietary standards control
school lunch programs, fast food items are typically sold
separately and fall outside the scope of nutritional
regulations.[228] Also, as a la carte sales increase in
schools, participation in NSLP decreases, and the dietary standards
that come with it.[229]

Providing fast food options on school campuses
represents conflicts of interests for children’s health.
These foods are likely better tasting and more appealing to
students than the traditional USDA approved cafeteria lunch
options. They are also likely less healthy. It is estimated that
more than half of students in those schools opt for fast food
rather then either cafeteria lunches or lunches brought from
home.[230]

While the federal government controls the nutrient
and fat content in the regular school lunch, a la carte items, such
as fast-food chain items, are not subject to the same
regulations.[231] Schools are required to follow the
USDA’s Dietary Guidelines for the school lunch program, but
are not required to use those standards for foods sold a la carte,
foods sold in snack bars, and foods from vending machines.[232] Federal regulations of competitive foods in
schools will benefit children’s health immensely, but there
is not a national policy. Countries such as Sweden, Norway, and
other European nations have a national school nutrition
policy.[233]

States can also regulate the presence of
competitive foods in schools. The state of Florida had a strict
competitive foods policy until 1999, when Governor Jeb Bush’s
administration rescinded it under the notions that local control is
best and kids should be able to make up their own minds about what
they eat in school.[234] Other states and school districts are taking
responsibility for the nutritional content of foods offered in
schools. In 2003, the California State Senate passed the first bill
in the nation banning the sale of soft drinks to elementary,
intermediate, and middle schools.[235]

Oakland, California was the first school district
to ban junk food in vending machines in January 2002, a move which
cost them an estimated $650,000 annually in lost revenues.[236] While such financial and economic costs may
seem daunting, more school districts need to realize their role in
the obesity epidemic and take responsibility for it. In 2004,
Chicago Public Schools banned vending machines in elementary and
middle schools, and additionally imposed a requirement that snacks
sold in vending machines in high schools meet reasonably stringent
nutritional standards.[237] Steps such as these are important because
they do not take snack options away from children, but offer
healthful alternatives, at least for the time spent at school.

New York City has been particularly aggressive in
changing the way children eat at school. The state of New York has
one of the highest rates of childhood obesity, as 20% of the
state’s children ages six to nineteen are
overweight.[238] New York City school district, the largest in
the nation, recognized the problem and adopted new regulations to
address it. In 2004, the school district hired an executive chef,
Jorge Leon Collazo, to implement a program that is aimed at curbing
child obesity and improving nutrition for the city’s 1.1
million schoolchildren.[239] The new chef revamped the menus, lowering
fat, sugar, and salt in recipes, increasing whole grain breads,
pastas and cereals, and eliminating some products containing trans
fat.[240] One particular change made was adding more
fresh fruit and salad bars, despite the fact that the USDA, under
the NSLP, will only reimburse schools for one vegetable and fruit
choice per student.[241] He also innovatively worked with food
suppliers and asked them to reformulate products and rethink what
they sell.[242] The city made breakfasts free for all
students in 2003, and the new menu features a low-fat breakfast
burrito and low-fat cream cheese for bagels; five million more
breakfasts were served in 2005 than in 2003.[243] The results to the new program in New York
City school district are both remarkable and promising. Cafeteria
sales are up; however, still fewer than 50% of high school students
eat school lunches.[244]

Schools are places that ideally educate children
about nutrition and health. The nation is experiencing a child
obesity epidemic. Kids who eat fast food daily get enough calories
to gain an extra six pounds a year.[245] It is an ironic twist that often they can eat
these foods daily in school. Basically, just offering more
healthful food options at schools is fairly easy to implement and
will encourage children to make appropriate food choices. Switching
snacks to low-fat popcorn, pretzels, bagel chips, fruit, and
low-fat frozen yogurt as opposed to potato chips and cookies would
make a difference. Also, while selling fast food is schools can be
lucrative to a school’s budget, it is not worth compromising
children’s health. According to the CDC, approximately 20% of
public schools in the U.S. now lease space to popular fast food
companies.[246] Regulating competitive foods in schools is a
necessary tool in the fight against child obesity.

The Role Schools Can Play

Schools can help combat child obesity in other
areas as well. Another critical step schools can take is to
increase physical education and emphasize its importance. Neither
corporate sponsorship of school athletic programs nor the obesity
epidemic has prevented drastic cuts in elementary and high school
physical education programs across the country.[247] According to the CDC, the number of high
school students taking daily physical education classes declined
more than 30% between 1991 and 2003.[248] Only about half of all schools require any
sort of physical education for elementary school students, and only
one-fourth to one-third require it for middle school kids.[249] The federal government recommends that
students K-12 receive 30 to 60 minutes of age and developmentally
appropriate physical activity most days of the week.[250] Despite these recommendations, and that
providing PE classes is a relatively easy way to encourage such
activity, federal law does not mandate physical education in
schools, and only one state, Illinois, currently requires daily PE
classes for all students.[251]

To add to the decline in physical activity during
the school day, the CDC also reports that 30% of elementary schools
nationwide do not offer regular recess.[252] Recess supplies an opportunity for kids to
run around for a few minutes on school grounds, providing a safe
place for children to go outside and be active. This is especially
relevant for children who live in neighborhoods and cities that are
not safe for them to play outside after school. Also, expenses of
organized sports or other physical activities are increasing.
Children of parents with lower incomes and educational levels were
less likely to participate in organized physical activity.[253]

Parents recognize the importance of physical
activity in a child’s daily life, and schools and governments
need to follow. A national survey conducted by the American Obesity
Association found that 78% of parents in the United States believe
that physical education or recess should not be reduced or replaced
with academic classes.[254] Parents should actively campaign to keep
physical education, recess, and other activity as part of the
school day.

Some schools are also advertising unhealthy food
products to students while they are in class. In 1989, Channel One
entered schools across the nation with the idea of giving students
a twelve minute show on current events each day.[255] Channel One is a program that broadcasts
overseas and to 12,000 schools in the United States to an audience
of eight million American sixth to twelfth graders.[256] The television channel lends a TV and VCR to
classrooms in subscribing schools.[257] In return, the schools show Channel One to
kids most days for at least twelve minutes a day.[258] Channel One’s advertising includes
candies like M&M’s and Snickers and snacks such as
Lay’s potato chips. Some school districts have recognized the
potential problems associated with this sort of programming and
cancelled the program or refused let it into their
schools.[259] The rest of schools need to follow.

FAST FOOD

Fast food is extremely popular, and there is a lot
of discussion around the role and extent of involvement fast food
plays in America’s obesity epidemic.[260] There are many reasons we love fast food.
Fast food is practical, and offers a large amount of food for
little expense. A recent study found that over 75% of fast food
eaters “believe they are getting good value for their
money”.[261] These meals are also often high in calories
and fat.[262] Analyses suggest that children from
economically disadvantaged environments are particularly vulnerable
to obesity, one reason being fast food serves as an inexpensive
meal option.[263] If parents are not fully aware of the
nutritional content of fast food, they are more likely to purchase
fast food for their children if they view it as a convenient food
for a good value.

Fast food patrons consistently underestimate the
extent to which consumption of fast food may harm them, because
they habitually discount the negative health contents of the foods
they eat.[264] Since restaurant patrons underestimate the
caloric content of foods they eat in restaurants, parents as
decision-makers likely misinterpret the health consequences of
buying fast food for their children. Fast food consumption among
U.S. children ages four to nineteen has increases approximately
500% since 1970.[265] Americans tend to underestimate the caloric
content of restaurant food by approximately 55%.[266]

The fast food industry directly targets young
consumers. The concepts of playlands in fast food restaurants,
“happy” meals, and clowns as mascots cut against any
argument to the contrary. One in three kids in the United States
over the age of four eats fast food every day.[267] According to a study published in the Journal
of Pediatrics in 2004, kids who eat fast food daily get enough
calories to gain six extra pounds a year.[268]

Fast food litigation has received lots of attention
in recent years. In 2003, two teens brought suit against
McDonald’s in Pelman v. McDonald’s Corp
.[269] Their suit was dismissed in part because the
court reasoned that they failed to allege that “their
decisions to eat at McDonalds several times a week were anything
but a choice freely made”.[270] However, McDonald’s and other fast food
restaurants do directly advertise to children. Ninety-six percent
of American schoolchildren can identify Ronald McDonald, second
only to Santa Claus in degree of recognition.[271] The choice on the part of teens to eat at
McDonalds was likely free choice, but it is reasonable to assume
that this choice was induced, or at least influenced, by years of
advertising and marketing strategies directed at young
children.

The judge in Perlman noted that there was
potential strength in the products liability claim against the fast
food restaurant, particularly if it could be shown that
McDonald’s created a more dangerous food than a consumer
could reasonably expect.[272] The case was ultimately dismissed when the
same judge concluded that “the plaintiffs have made no
explicit allegations that they witnessed any particular deceptive
advertisement, and they have not provided McDonald’s with
enough information to determine whether its products are the cause
of the alleged injuries.”[273]

The concept of children blaming fast food companies
for their obesity and related diseases is more plausible, and more
compelling, than it is in the context of adult consumers.[274] Public opinion of the recent exposure on
potential fast food litigation tends to mock the idea, and again
point to personal responsibility as the cause for obesity. However,
these claims are not necessarily as frivolous as they might
initially seem, particularly when viewed from the perspective of a
child that has grown up inundated with fast food culture. Children
are not expected to have the same level of personal responsibility
as adults and are exploitable in making food choices.

Any litigation against fast food companies for
their role in the obesity epidemic face several obstacles to
success. Firstly, there is an unclear duty on the part of fast food
companies to protect consumers from overconsumption.[275] This is where the idea of personal
responsibility factors in. There is an assumption of risk by
consumers when they knowingly eat fattening foods. Polling data
supports that there is a broad public awareness of the tendency of
fast food to include high levels of fat, cholesterol, sugar, and
salt.[276] However, while fast food consumers may
recognize that consumption of fast food can lead to obesity, they
often fail to recognize the extent to which such consumption may
harm them, particularly since they tend to underestimate levels of
cholesterol, fat, salt, and sugar in fast food.[277] So if consumers can prove that there was a
common law duty to warn arising from the fact that “the
product is dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it”, they
may be able to succeed in litigation against fast food.[278] This principle was demonstrated in the recent
tobacco litigation.

Possibly most problematically to successful
litigation against fast food companies, it is difficult to prove
causation, as obesity is generally caused by a variety of factors.
Fast food and obesity is unlike lung cancer and smoking, or breast
cancer and silicone breast implants. Obesity can be triggered by a
number of factors, such as lack of exercise, genetic
predisposition, overconsumption of various foods, or a combination
of any of these.[279] In light of these varying factors, it is
difficult to measure the extent of the role fast food played in any
one person’s obesity. Also, unlike cigarettes, there is no
real scientific showing that fast food is
“addictive”.[280] Similarly challenging, it is difficult to
determine the role obesity plays in triggering diseases such as
hypertension or heart disease.[281] While obesity increases the risk of these
diseases, other factors such as genetic predisposition and
environmental factors play a role as well.

A fast food consumer likely knows that consuming
fast foods can have negative health effects. Therefore, it appears
unlikely that fast food companies have a common law duty to divulge
nutritional content of their food simply because of the inclusion
of high levels of cholesterol, fat, salt, and sugar.[282] Fast food consumers seem to know that eating
fast food can increase the risk of obesity, but tend to
underestimate this causal factor because of insufficient
information. Even if litigation against fast food companies is
unsuccessful, this does not mean that there are not ways to mandate
or incentivize fast food companies to be more responsible in
response to the obesity epidemic. One approach is to alter the way
fast food companies interact with children.

The idea of advertising to young children likely
stems from two ideas. One, that targeting children not only gets
them into fast food restaurants, but also achieves getting the
parents in too. Also, advertising to children focuses on gaining a
lifetime, loyal customer.[283] Children are especially valuable as future
consumers. To attract and keep children in their purchasing
audience, fast food companies attempt to establish brand loyalty at
an early age, one major reason for including children’s toys
in fast food meals.[284] The style and substance of child-centered
marketing strategies resemble those employed by the tobacco
companies, and those triggered a duty to warn.[285] Obesity ranks second only to tobacco use as
the largest contributor to mortality rates in the Unites
States.[286] In United States v. Philip Morris Inc
., the court described the promotional techniques used by tobacco
companies such as advertising near high schools, promoting during
summer breaks, giving away cigarettes as places where young people
gather, paying for product placement in movies with young
audiences, sponsoring sporting and other events popular with young
people.[287] Similarly, fast food marketing strategies
include representations on television, product placement in
children’s movies, billboards on school buses, and toys upon
purchase of meals.[288] Tellingly, 96% of children recognize Ronald
McDonald as a symbol of fast food, while 72% of children recognize
Joe Camel as a symbol of cigarettes.[289]

The Supreme Court recognized in Lorillard
Tobacco Co. v. Reilly that there is a danger in fast-food
advertising on children in that advertisements directed at children
have been successful in changing children’s eating
behavior.[290] Children are often unable to discriminate
between news and commercials, and educative and persuasive
intent.[291] Also, children cannot be held to the same
level of personal responsibility and assumption of risk as
adults.[292]

The influence of child-centered marketing
strategies and advertising of fast food companies illustrates the
importance of parents as an intervening factor. Parents need to be
more aware of the significance of their role in making food choices
for their children. Americans are eating out more, and eating more.
The nation is becoming increasingly busy and fast-paced; adding to
the allure of eating at restaurants, especially fast-food
restaurants, is ease and speediness. Parents need to be fully
informed of the risks of availing to their children certain kinds
of foods. Again, making nutritional information available gives the
parents the most pertinent information to make decisions that will
affect their child’s health.

Soft Drinks

Soft drinks are especially deceiving because they
are in beverage form and are not going to generate a full feeling
as experienced when consuming other high-calorie content items. An
average 12-ounce soda contains 10 teaspoons of sugar and 150
calories.[293] Juice and soft drinks often replace milk in
children’s and adolescents’ diets and are a major
contributing factor to high calorie intake.[294] In January 2004, the American Academy of
Pediatrics issued a policy statement warning
children’s’ doctors that obesity can be associated with
a high intake of sweetened drinks, finding that sweetened drinks
are the primary source of added sugar in children’s’
diets and that soda often takes the place of more nutritious drinks
such as milk.[295]

For years, and until very recently, soda companies
have created exclusive, often secretive, contracts with school
districts to install vending machines on school property.[296] In exchange for exclusive right to sell their
products in schools, soft drink companies return a portion of the
profits to underfunded schools.[297] These much needed funds are then used by
schools to buy essentials such as textbooks, and fund sports and
music programs.[298] According to the CDC, more than 76% of public
schools in the U.S. sell soft drinks from vending
machines.[299]

The Los Angeles Unified School District is the
second largest school district in the country.[300] In 2004 the district banned soft drinks and
sugar-laden fruit drinks for all grades at all campuses.[301] This turned out to be an innovative decision
and led to the California state legislature to ban soft drinks from
elementary and middle schools.[302] The policy also banishes competitive foods at
lunchtime in middle and high schools.[303]

Other states are taking action as well. In 2004,
Texas banned sales of candy, soda, and other sweets in elementary
schools until after school. The state of New York now prohibits the
sale of candy and soda from school vending until the last
period.[304] Legislators in nineteen other states are
trying to restrict access to soda in schools.[305] Alternatively, schools that are not ready to
forego the financial support of contracts with soda companies have
managed to restrict access to soda, for instance only allowing use
of vending machines before and after school.[306]

Food companies, particularly soda companies
criticized for marketing and forming contracts with school
districts, argue that the increasing obesity in America is due to a
decrease in physical activity. [307] While this is certainly a major part of the
problem, weight is a function of calories taken in and calories
expended. While calories expended are an essential component of
this balance, food and beverage companies cannot ignore the other
part, calories taken in, and their role in it.

In a deal announced on May 3, 2006, the
nation’s largest beverage distributors agreed to stop selling
non-diet sodas in most public schools, in an effort to combat child
obesity.[308] This is a bold and major step in the right
direction. Under this agreement, diet sodas would still be sold at
public high schools, but only unsweetened juice, low-fat milk, and
water will be sold at elementary and middle schools.[309] The agreement includes industry giants
Cadbury Schwepps PLC, Coca-Cola Co., and PepsiCo Inc. and should
reach about 87% of the school drink market.[310] This step shows school systems and large
companies both each make changes that will effectively combat child
obesity.

Children are in school, for the most part, five to
seven hours daily five days a week. Restricting the availability of
foods with poor nutritional quality such as fast food or soft
drinks for this amount of time is an easy way to combat the child
obesity epidemic. Providing healthy alternatives to such foods as
well as education on health and some form of physical education or
activity are others that, combined, will give the child obesity
epidemic a hard hit.

ADVERTISING

Advertising to children is a controversial issue,
especially in light of the recent and growing concerns over the
child obesity epidemic. While the FDA regulates food labeling, the
FTC regulates the validity of advertising.[311] As public health agencies and others search
for the causes of child obesity, many are looking to regulating
advertising as a way to address the problem. One proposal is to
restrict advertising of certain food products to children.[312]

“Because younger children do not understand
persuasive intent in advertising, they are easy targets for
commercial persuasion,” states Brian Wilcox, Phd, chair of
the American Psychology Association task force.[313] Young children do not understand the purpose
of advertisements, and may not realize they are watching an
advertisement at all.[314] Furthermore, studies consistently find that
most children fail to develop deductive reasoning skills until they
are twelve to fifteen years old.[315]

The average American child is exposed to 40,000 ads
per year, or three hours of commercials per week.[316] Food commercials account for more than 50% of
television advertising aimed at children, meaning that an average
child observes at least 10,000 advertisements a year for food, 95%
of which pertain to fast food, soda, candy, and sugar-fortified
cereals.[317]

The fast food industry alone spends $33 billion
annually on advertising, trade shows, incentives, and other
consumer promotions.[318] McDonald’s spends $635 million annually
on advertising.[319] To put this into perspective, only 2% of food
advertising is devoted to the promotion of fruits, vegetables,
grains, or beans.[320] Given the amount of children’s exposure
to advertisements, it is worth exploring what regulations of
advertising to children could accomplish.

Calls for restrictions on food advertising to
children are predicated on the assumption that such restrictions
will help to fight child obesity.[321] While there is a substantial amount of
advertising for unhealthy foods such as sugared cereal, candy,
salty snacks, and so on, for the most part children cannot go out
and buy these products without their parents. The theory behind
restricting advertising to children includes the idea that
advertising spurs the demands of children, which in turn, puts
pressure on parents.[322] This is another example of an opportunity for
parents to act as an intervening factor to environmental influences
on children in the obesity epidemic.

While children are exposed to a substantial amount
of food advertisements, it appears that such exposure has not risen
in the same period that children’s obesity rates have risen,
and, some argue, cannot account for the increasing child obesity
epidemic.[323] Also, product advertising can increase market
demand for a category of products, or it can simply increase demand
from a particular brand.[324] Furthermore, a recent study concluded that
parents’ eating behavior was substantially more important
than advertising in influencing children’s dietary
habits.[325]

Again, it is important realize that there are many
factors at play, and there is not any one cause that fixing will
solve the child obesity epidemic. Advertising may not cause child
obesity, but it may be a causal factor. If advertising towards
children is not an effective way of influencing what their food
choices are, why do food companies spend so much money on
advertising targeted at children? For instance, on average, 57% of
Saturday morning advertisements promotes some kind of food
product.[326] Forty-four percent of ads promote foods such
as candy, soft drinks, chips, cakes, cookies, and pastries, and 11%
of the ads are for fast-food restaurants.[327] A report published in the Journal of the
American Dietetic Association confirms the considerable effects of
fast food advertising on children’s eating patterns.[328] In children ages two through six preferences
for specific food products were significantly influenced by only
one or two exposures to ten- to thirty-second food
commercials.[329] So, given the volume of advertisements kids
are exposed to, and that kids do not have developed deductive
reasoning skills, it is likely that these ads will have some effect
on children’s food choices now and in the future.

Another argument is that advertising works to shift
demand across brands, which would not necessarily add to the
increasing child obesity problem.[330] However, the goals of advertisements are not
to merely shift demand across brands; advertising also tries to
increase overall market demand as well, and succeeds.

One of the reasons that restricting advertising to
children is so controversial is because commercial speech is
protected by the First Amendment, and so there is a fear of
restricting truthful advertising.[331] To overcome this problem and allow regulation
of advertising to children, first it needs to be shown that there
is a substantial government interest in protecting children’s
health, especially in light of the child obesity epidemic our
country is facing.[332] The problem in this arises in proving that
restricting advertising for junk food targeted at children would
advance the goal of protecting their health. There is a link
between television exposure and child obesity, but it difficult to
separate how much of this is from exposure to ads for junk food or
from the amount of sedentary time watching TV and
snacking.[333]

The First Amendment affords protection to
commercial speech and freedom of the press, so regulations that
restrict too much speech in attempt to accomplish the
government’s interest are not upheld.[334] To regulate commercial speech in this manner
there would have to be a showing that any restrictions are no more
extensive than necessary to serve the government’s interest
of protecting children’s health.[335] There are alternatives to address the child
obesity epidemic without restricting commercial speech or
infringing on the First Amendment, such as requiring physical
education in schools, more public awareness and education, and
other remedies explored further in this paper. Arguments against
any kind of advertising regulation because there are other remedies
available seemingly shifts any blame for the child obesity epidemic
to other causal factors. However, if advertising to children is a
causal factor to child obesity or plays a role in the problem,
addressing and modifying advertising to children can act as a
valuable step in combating child obesity.

Instead of proving that advertising is causing the
obesity epidemic, we should acknowledge that there are many causal
factors playing a part in the problem. If advertising targeted at
children is part of the problem, taking action to prevent any
harmful effects of such advertising is one step in the right
direction. It seems obvious that advertising would increase demand
for junk food, consumption of which, in turn, to the obesity
problem. Why else would McDonald’s spend $635 million
annually on advertising?[336]

Regulations

While commercial speech is protected, false,
misleading speech is never protected.[337] The First Amendment does not protect
misleading claims of weight-loss, health-benefit, or
nutrient-content claims. The FDA and FDA can aggressively regulate
deceptive or misleading advertising. Advertisements that are
targeted at children have greater potential to be misleading since
most children do not have developed deductive reasoning or other
skills to filter the information provided in
advertisements.[338]

Defining what is “junk food” and what
foods constitute good nutritional value can be problematic in any
kind of regulation of advertising to children. For example, the
FDA’s labeling rules mandate that foods have a minimum amount
of certain nutrients before health claims can be made; however,
this rule actually works to prevent health claims for many fruits
and vegetables.[339] Also, furthering a “good vs. bad”
mentality in terms of foods does not necessarily effectively
address the obesity problem. The goal is to create a healthy
approach to making food choices that leads to an overall healthy
lifestyle.

Advertisements and food labels do not necessarily
have to work as a causal factor to the obesity epidemic. Food
labeling and advertising can actually be used to positively
influence the obesity problems, and this concept is worth exploring
and implementing. Advertisements and labels are effective tools
that reach masses of people and convey valuable information, and
therefore have the power to raise awareness and provide guidance to
help Americans to manage healthier life-styles.

MARKET RESPONSIBILITY

It is worth exploring how the market can provide
incentives and opportunities for companies and other actors to
address the child obesity epidemic and make changes that could make
a real difference in the lives of children. Even without additional
advertising or labeling regulations imposed, some companies are
responding to the child obesity epidemic by taking action and
making responsible adjustments.

Kraft Foods, Inc. is taking some of the first steps
in terms of corporations playing a role in combating (and not
escalating) the child obesity epidemic. Kraft announced that it
would stop advertising its best-known snack foods and sugary
cereals during television shows designed for 6 to 10 year
olds.[340] Additionally, the company is pulling its
marketing and advertising from classrooms.[341] More significantly, Kraft is making some its
products a little healthier by decreasing the amount of fat in
products or reducing portion sizes.[342] It’s a step in the right direction, and
the company is smart to capitalize on the good will it is
generating by taking these initial steps. Hopefully, other
corporations will take notice and follow in their footsteps.

Another surprising source taking an active role in
combating child obesity is Nickelodeon, the largest kids’
television network.[343] In 2003, the station initiated a campaign
called “Let’s Just Play” aimed at getting
children more physically active, and dedicates 10% of its
non-programmed airtime to encourage children to turn off the TV. It
even declared a “Worldwide Day of Play” and went off
the air for three hours to encourage children to go outside and
play.[344] It is remarkable that a television station is
actively campaigning for kids to turn off the television and go
outside and play, but obviously Nickelodeon recognizes the
extremeness of the problem and is using its influence over children
to make a difference.

The deal that led soda companies to stop selling
non-diet sodas in most public schools is another example of
corporate responsibility.[345] The agreement will affect 35 million young
Americans, but should not have much impact on the $63 billion
dollar beverage industry; the sale of sodas in schools is a small
percentage of their overall volume.[346] Corporate and community recognition of the
value to children in these kinds of modifications is essential to
defeating the child obesity epidemic.

Other food companies are recognizing their role in
what children eat, and are making some adjustments that might make
a real difference in the child obesity epidemic. For instance,
General Mills is the nation’s No. 2 cereal maker that now
makes all its cereals from whole-grain flour.[347] Kraft Foods Inc is the biggest food
manufacturer in the nation; in addition to some of the changes
previously discussed, Kraft is cutting the fat in hundreds of
products.[348] Coca-cola is starting to label some of its
sodas with nutrition data for the entire bottle, not just one
serving.[349] Pepsico has launched various healthy eating
education efforts and tied executive bonus programs to the
development and marketing of healthier items.[350] Additionally, Pepsico credits healthier
products with two-thirds of its revenue growth.[351] Making companies realize that taking steps
like these to fight child obesity can actually benefit them provide
the market incentives to take greater action. Industry goodwill and
consumer demand are powerful market tools that offer incentives for
companies to act responsibly in response to the nation’s
obesity epidemic.

Food labeling and advertising can be critical
channels that provide consumers with accurate information to make
better food choices. The FDA and the Federal Trade Commission
should, working together as necessary, further the free flow of
truthful and non-misleading information about the nutritional
content and health effects of foods.[352] Competition about the health effects of food
also can provide a powerful economic incentive for companies to
develop and market healthier foods, including foods with fewer
calories. In the absence of federal regulations or mandates to
divulge food’s nutritional content, market incentives may
prove effective in eliciting such information. Employing industry
goodwill and consumer demand as powerful tools can influence the
actions of the food industry.

CONCLUSION

Child obesity, and the global obesity epidemic at
large, is a result of changes in the past few years including
socioeconomic changes, changes in family dynamics, migration
towards cities, and improvements in technologies. While these
trends are not necessarily harmful, they work together to create an
environment that fosters behavior that leads to obesity. To combat
the epidemic, we need to address each of these factors. There is
not one cause of child obesity that correcting or changing will
solve the problem.

We need to raise awareness and encourage parents
and pediatricians to actively and aggressively combat behaviors
that lead to child obesity. Schools need use their abilities to
educate and influence children’s eating habits and lifestyles
by educating children on good health habits, providing nutritious
and healthy foods at school, and encouraging and providing
opportunities for physical education. The government and its
agencies need to examine their role in combating child obesity and
create or improve upon regulations in ways that will make a
difference in the lives of children. Corporations also need to take
community responsibility for their actions regarding the obesity
epidemic. If they are smart, they will use the market in ways that
will be beneficial to them as well as to the health of
consumers.

Specifically, we can support establishing subsidies
to lower the price of healthy foods, get rid of candy, soda, fast
food, and junk food from schools, research the effects (both good
and bad) of drug therapies, encourage manufacturers and restaurants
to provide more low-calorie options, and require restaurants to
clearly list caloric content of menu items. Focusing on calories
taken in and expended is an easy starting place. We ultimately need
to create lifestyle changes involving nutrionally balanced diets
and regular exercise. Combining these strategies, we have the
opportunity rescue our nation’s children and defeat this
epidemic.

Diagram 1

The Global Picture*

x- axis % of obese 15-yr-olds

y-axis - Country

Diagram 2

Prevalence of Overweight Among Children and
Adolescents ages 6-19 years**

** Childhood Overweight: What the Research Tells
Us (March 2005). Available on-line at
www.healthinschools.org/sh/obesityfs.asp.

[1] “In 2000, for the first time in history, the
number of overweight people in the world equaled the number of
malnourished –1.1 billion each”. Jeremy H. Rogers,
Living on the Fat of the Land: How to Have Your Burger and Sue
It Too,81 WASH. U. L. Q. 859, 866
( Fall 2003) .

[2] See Rogers, Living on the Fat of the Land: How to
Have Your Burger and Sue It Too at 863.

[8] Zywicki et al., Obesity and Advertising Policy
at 990. Snacking accounted for 90% of the increase for men and 112%
of the increase for women. Calories from dinner declined markedly.
The increase in snacking can be accounted for by the lower time
cost of food. As a result of innovations in food preparation and
storage technology, reasonably tasty and inexpensive snacks can be
stored and readily available.

[9] See The Surgeon General’s Call to Action to
Prevent and Decrease Overweight and Obesity: Overweight in Children
and Adolescents . U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES . Available on-line at
http://www.surgeongeneral.gov/topics/obesity/calltoaction/fact_asolescents.htm.

[10] Daniel DeNoon, Will Obesity Shorten the
American Life Span?WEBMD WEIGHT LOSS
CLINIC . March 16, 2005. Available on-line at
http://www.webmd.com/content/article/102/106604.htm .

[11] Kathryn L. Plemmons, The National School
Lunch Program and the USDA Dietary Guidelines: Is There Room for
Reconciliation?33 J.L. & EDUC.
181 , 182 (April 2004).

[15] Rogers, Living on the Fat of the Land: How to
Have Your Burger and Sue It Too at 866.

[16] Associated Press, Obesity epidemic hits child
safety seats . Available online at http://www.msnbc.msn.com/id/12122112/. More than a quarter million U.S. children ages 1 to 6 are
heavier than the weight limits for standard car seats, and most are
3 year olds who weigh more than 40 pounds, which is generally
considered overweight. Manufacturers are now making strollers that
can support children 50 to 60 pounds.

[17] Rogers, Living on the Fat of the Land: How to
Have Your Burger and Sue It Too at 865.

[22] McCann, Economic Efficiency and Consumer
Choice Theory in Nutritional Labeling at 1178-79. Ten percent
of children ages 2 to 5 are overweight, a statistic that has risen
over 40% since 1994. Fifteen percent of children ages six to eleven
are overweight or obese, compared with only 7% in 1980 and 4% in
1970.

[27]Id . at 119. A 2000 survey in Marin
County, California found that one in four cars in morning traffic
was taking kids to school.

[28] McCann, Economic Efficiency and Consumer
Choice Theory in Nutritional Labeling at 1178-79. Studies show
that children from economically disadvantaged or single-parent
households tend to skip breakfast, eat fewer vegetables, and eat
more junk food than any other demographic.

[29] TartamellaET AL.,
GENERATION EXTRA LARGE , 121-122. A 2003 study by
researchers at the CDC estimated that suburban life adds an average
of six pounds to every adult.

[34] Ashworth, DEFEATING THE
CHILD OBESITY EPIDEMIC, 120-121. According to the National
Institute on Media and the Family, 92% of children ages 2 to 17
years old play video games and one-third of all children have video
game players in their room. According to the Kaiser Family
Foundation, 30% of children ages 2 to 18 spend more than an hour
playing a video game each day. A study conducted by the University
of Michigan examined how teens spend their free time. Youths ages
12 to 17 spend an average of about five hours a week using the home
computer.

[40] Ashworth, DEFEATING THE
CHILD OBESITY EPIDEMIC , 73. The family meal also has many
other benefits for children. A survey for the National Center on
Addiction and Substance Abuse found that among 12 to 17 year-olds,
those who eat meals with their families are less likely to smoke,
drink, or use illegal drugs than those who don’t.

[41] Tartamella et al., GENERATION EXTRA LARGE , 55. According to a 2002
report by USDA researchers, in 1996 Americans got about one third
of their daily calories form foods prepared outside of the house,
nearly a 100% increase since 1977.

[50] Rogers, Living on the Fat of the Land: How to
Have Your Burger and Sue It Too at 866.

[51]The Surgeon General’s Call to Action to
Prevent and Decrease Overweight and Obesity: Overweight in Children
and Adolescents . U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES . Available on-line at
http://www.surgeongeneral.gov/topics/obesity/calltoaction/fact_asolescents.htm.

[55] McCann, Economic Efficiency and Consumer
Choice Theory in Nutritional Labeling at 1166. See also The
Surgeon General’s Call to Action to Prevent and Decrease
Overweight and Obesity: Overweight in Children and Adolescents
. U.S. DEPARTMENT OF HEALTH AND HUMAN
SERVICES . A weight gain of 11 to 18 pounds increases a
person’s risk of developing type 2 diabetes to twice that of
individuals who have not gained weight.

[62]Id . A study recently revealed that 50%
of people with diabetes will also develop a non-alcoholic fatty
liver and non-alcoholic hepatitis. Frighteningly, fatty liver
disease is being diagnosed in 10-year-old children. There are
questions to as this becomes more prevalent and this generation
grows older what the long-term consequences of this disease will
be.

[63]Id . at 147. The cardiovascular risks are
particularly alarming. In 1999, the CDC found that 10% of normal
weight children demonstrated one cardiovascular risk. Recent
studies show that 60% of obese children ages five to 10 years have
at least one cardiovascular disease risk factor such as elevated
cholesterol, triglycerides, insulin or blood pressure. Twenty-five
percent of these children already show signs of developing two or
more of these risk factors.

[68] See The Surgeon General’s Call to
Action to Prevent and Decrease Overweight and Obesity: Overweight
in Children and Adolescents . U.S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES . Available on-line
at
http://www.surgeongeneral.gov/topics/obesity/calltoaction/fact_asolescents.htm.

[75] Tartamella et al., GENERATION EXTRA LARGE , 18. The study was
conducted by researchers at the University of California at San
Diego. The researchers surveyed 106 obese children and their
parents and found that the children’s quality of life was far
inferior to average-weight kids. They were five times as likely to
be impaired physically and to be suffering far more than other kids
emotionally, socially, and at school. Approximately 65% of the kids
had an obesity related health problem such as diabetes, sleep
apnea, or elevated cholesterol. Nearly 13% suffered from anxiety,
depression, or other psychiatric problems.

[114]Id . Neither group showed significant
differences with respect to changes in lipid or glucose levels.
Although researchers do not yet know how much BMI must be reduced
to provide short and long-term health benefits in children and
adolescents, this study suggests that small changes in weight do
not affect the metabolic risk factors.

[122]Id . This makes the procedure appealing
for younger patients rather than permanently shrinking their
stomachs. The procedure costs $15,000 to $25,000, and is not always
covered by insurance companies.

[125] See See Overweight? Not my Kid! FDA
Consumer Magazine, September-October
2000. Available on-line at http://www.fda.gov/FDAC/departs/2000/500_upd.html#weight
. Researchers from the Bassett Healthcare Research Institute in
Cooperstown, NY and Columbia University surveyed 1400 guardians of
children age 1 to 5 who were participants in the Supplemental
Nutrition Program for Women, Infants, and Children (WIC) in New
York. The researchers found that 68% of parents of children with a
Body Mass Index (BMI) above the 95th percentile
(considered obese) reported the child’s weight as “OK,
just right” and 8% even reported their child was
“underweight”.

[151]Id . Specifically, the restaurants were
ordered to change their menus’ claims of
“healthy” items so that they were either
“designed to meet the requirements for the claim because it
was prepared using a recipe from a recognized health professional
association or dietary group” or “the nutritional
values for the dish were calculated using a reliable nutrition data
base.” Restaurants were allotted ten months to make the
necessary changes.

[162]Id . at 1195. Advocates of campaign
finance reform contend that such preferred treatment can be
attributed to substantial campaign contributions. According to the
Center for Public Integrity, the fast food industry has contributed
more than $41 million to congressional and senatorial races from
1988 to 1998. McDonald’s supplied $1.7 million to
congressional races at this time.

[169]Id . at 1193. For example, a visitor to
Burger King’s website can learn that a Double Whopper with
Cheese contains sixty-four grams of fat, but will not see that
consuming sixty-four grams of fat is 100% of the suggested daily
intake of saturated fat.

[203] McCann, Economic Efficiency and Consumer
Choice Theory in Nutritional Labeling at 1195. According to one
study, consumers regard the format as effective. Ninety percent
believe the format “makes it easier to tell if a food is high
or low in fat”. Seventy percent regard the format as
“more clear and understandable” than previous
incarnations of nutrition facts.

[205] See Amanda Spake, The World of Chef George:
The daunting task of making New York City’s school lunches
healthful . May 9, 2005. Available on-line at
http://www.usnews.com/usnews/health/articles/050509/9chef.htm.

[217]Id . at 17-19. Controlling for
observable characteristics such as age, race, gender,
parents’ BMI, and family size, school lunch eaters consume
about forty-six extra calories per day, but this additional
consumption comes entirely at lunch.

[218]Id . at 20. This study was conducted
with Mathematica Policy Research (MPR) using the Continuing Survey
of Food Intake by Individuals (CSFII). They also found that all of
these additional calories come at lunchtime and that there is no
difference in the non-lunch calories consumed by the two
groups.

[231] Tartamella et al., GENERATION EXTRA LARGE , 83. Wary of soda and
vending machine foods encroaching on schools, Congress amended the
1966 Child Nutrition Act in 1970, allowing the USDA to regulate
foods that competed with the school lunch program. Schools making
money selling snack foods objected, and in 1972 Congress rescinded
USDA’s authority. “Profit had triumphed over
nutrition,” a U.S. District Court judge would later
write.

[232] See Childhood Overweight: What the Research
TellsUs (March 2005). Available on-line at
www.healthinschools.org/sh/obesityfs.asp .

[239] See Amanda Spake, The World of Chef George:
The daunting task of making New York City’s school lunches
healthful . May 9, 2005. Available on-line at
http://www.usnews.com/usnews/health/articles/050509/9chef.htm.

[249]Id . at 107. Additionally, a study of
third and fourth graders published in 2000 found that kids were
less active after school on days when they don’t have
P.E.

[250] Ashworth, DEFEATING THE
CHILD OBESITY EPIDEMIC , 114. A study from the National
Institute for Health Care Management Research and Educational
Foundation found that only 16% of kindergarten programs met this
standard. The prevailing schedule for 72% of kindergarteners is to
have PE less than two times a week.

[252]Id . at 110. In March 2004 a recess
bill went before the Georgia state legislature that would require
schools to give at least fifteen minutes a day of recess. The bill
did not pass despite the vocal support of parents, teachers, and
the American Academy of Pediatrics.

[253] See Childhood Overweight: What the Research
TellsUs (March 2005). Available on-line at
www.healthinschools.org/sh/obesityfs.asp .

[258]Id . Adding up the time that kids are
exposed to TV in the classroom from this set-up it comes to one
lost week of school per year, or seven weeks over the course of
seven school years.

[259]Id . The states of New York and
California refused to let Channel One into their schools. Those
school districts that continue to use Channel One defend their
position because it provides equipment they would otherwise be
unable to afford.

[260] McCann, Economic Efficiency and Consumer
Choice Theory in Nutritional Labeling at 1172. Twenty-five
percent of Americans eat fast food daily, and the average American
consumes two fast food meals a week. Americans now spend $110
billion annually on fast food items compared to $50 billion spent
on seafood, and $60 billion spent on fruits and vegetables. There
are almost 250,000 fast food restaurants in the Untied States, or
roughly one for every 1,200 Americans.

[262]Id . For example, a “super sized
Big Mac value meal” at McDonald’s contains 1430
calories and fifty-eight grams of fat. The FDA, in the interests of
maintaining good health, presently recommends that fat intake not
exceed 30% of total daily consumption of calories, and that the
average-sized person consume between 2,000 and 2,500 calories and
sixty-five grams of fat each day.

[265]Id . 1180. In any given month, 90% of
American children between the ages of three and nine eat at a
McDonald’s restaurant. Children who consume fast food could
theoretically add on average six pounds to their weight per
year.

[295] Tartamella et al., GENERATION EXTRA LARGE , 79. A study from 2003
published in Obesity Research estimated that the average
person on the planet got seventy-four more calories each day from
added sweeteners in 2000 than in 1962. Although the sweets came in
many forms, sodas accounted for the majority of the extra
calories.

[304]Id . at 87. After banishing soda, the
New York City school system signed an eight million dollar contract
with Snapple, making it the official drink of New York schools.
This means that the company will be selling 100% juice and bottled
water alongside its fruit drinks, the Snapple drinks are
sugar-sweetened and just as bad for kids as soda.